Judge throws out negligence claim after two-year hiatus

Litigants who waited more than two years to resurrect their professional negligence case against a law firm have failed to overturn the strike-out of the claim.

Design and building contractors Solland had attempted to sue London firm Clifford Harris & Co for £8m in damages in relation to advice provided in a case that settled in 2004.

A claim form for negligence and breach of retainer was issued in November 2008. However it was not until December 2011 that the claimants served their particulars of claim.

But nothing advanced in proceedings from April 2012 to August 2014, until Clifford Harris issued an application to strike out the claim.

Solland and its owners said they had already spent £500,000 in legal costs by this point and had been engaged until March 2013 with three other pieces of litigation. They then claimed to have spent the following 15 months meeting various legal advisers to choose their representatives.

In July this year Master Bowles struck out the claim and declined to grant the claimants a retrospective extension of time for filing an allocation questionnaire.

The judge accepted that the delay had caused an abuse of process and restricted the chances of a fair trial.

Bowles said the claimants had started or carried on their claim with ‘no intention’ of pursuing it to trial or other proper resolution, and had conducted proceedings with ‘wholesale disregard’ of the rules of litigation in full knowledge of the consequences.

Appealing that decision, the claimants said the judge had failed to give any, or any sufficient, weight to the fact that the burden lay on the respondent to show they had lost interest in proceedings, suggesting that their ‘mere inactivity was not enough’. They argued at a hearing this month that they had ‘simply put the litigation on hold for the time being’.

But The Hon Mr Justice Arnold (pictured) said the judge had not needed to find abuse of process established for him to find the claimants had decided ‘permanently to abandon’ the litigation, even if they subsequently changed their mind.

The two-year lag was ‘on any view a substantial period, but all the more so having regard to how stale the claim already was at the beginning of the period’.

Arnold said Bowles had been wrong to rule that the claimants had disregarded the rules of litigation, as the court had failed to take any action when they failed to file an allocation questionnaire in 2012.

Nevertheless, Arnold said it was the right decision to strike out the claim.

‘[Bowles] was skeptical as to the extent of [the claimants’] commitment, and in particular as to whether it would be translated into appropriate action in the future,’ said the judge. ‘In my judgment he was entitled to be sceptical given the previous history, the time it took the Appellants to file their allocation questionnaire after the service of the Respondent’s application (a period of nearly three months) and the state of the Appellants’ evidence.’